Riverview Gardens [2010] QBCCMCmr 469 (14 October 2010)

Last Updated: 11 November 2010

REFERENCE: 0893-2010

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	8511
Name of Scheme:	Riverview Gardens
Address of Scheme:	26 Lower River Terrace, SOUTH BRISBANE Q 4101

TAKE NOTICE that pursuant to an application made under the abovementioned Act by

John Robertson and Cheryl Macnaught, the Owner(s) of lot 67

I hereby order that the application for an interim order is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0893-2010

“Riverview Gardens” CTS 8511

Riverview Gardens community titles scheme 8511 (Riverview Gardens) consists of 67 lots and common property. The Community Management Statement (CMS) for Riverview Gardens indicates that the Body Corporate and Community Management (Standard Module) Regulation 2008 (Standard Module) applies to the scheme. The Department of Environment and Resource Management records show the scheme is registered as Building Units Plan 6721.

INTERIM APPLICATION

This is an application for interim orders lodged by John Robertson and Cheryl Macnaught, co-owners of Lot 67 (applicant) on 24 September 2010 under the Body Corporate and Community Management Act 1997 (Act). The applicants seek an interim order against the Body Corporate for Riverview Gardens (respondent) in the following terms:

An order that the Body Corporate take steps to immediately secure the air-conditioning plant, equipment and ductwork.

The application also seeks the following final orders:

1. A declaration that the Body Corporate’s contractors caused the independent air-conditioning plant, equipment and ductwork of the Applicants to become insecure by the removal of the tie downs during the replacement of the roof membrane on Level 0 of the common property.
2. An order that the Body Corporate take steps to immediately secure the air-conditioning plant, equipment and ductwork;
3. A declaration that the Body Corporate is preventing the Applicants from being able to comply with its statutory requirements as set out in s.159(3)(a) Standard Module; and
4. An order that the Respondent immediately provide the Applicants with a key to access Level 0 on the Common Property so as to allow them access at all times together with their servants and agents for the purposes of maintaining and repairing such plant, equipment and ductings to enable the Applicants to comply with the statutory requirements set out in s. 159(3)(a) Standard Module.
   

PROCEDURAL MATTERS

In accordance with section 247 of the Act, the Commissioner for Body Corporate and Community Management has referred the application to me to decide whether the nature or urgency of the circumstances of the application warrant an interim order. The Commissioner has referred the application notwithstanding that affected persons have not been given notice of the application or afforded an opportunity to make submissions about the application[1]. In the circumstances, I have provided the Body Corporate Committee (committee) with a limited opportunity to make a written submission in response to the interim application. The committee made a submission in due course.

MATTERS IN DISPUTE

This application relates to the securing of tie down points on the ducting of the applicant’s air-conditioning plant and equipment. The circumstances of the dispute are as follows:

The previous proprietor of Lot 67 (the applicants’ lot) installed air-conditioning plant, equipment and ductwork on the common property Level 0 roof area pursuant to clause 48 of the now superseded by-laws.

In July 2010, the body corporate replaced the roofing membrane located on Level 0. On or about 29 July 2010, the applicants were informed through their builder, Charlie Woodward, that the tie down points on the ducting were removed during the roof membrane works.

On 12 August 2010, the builder wrote to the applicants advising that high winds were expected which was concerning given that the tie down points on the ducting had been disconnected.

On 13 August 2010, the applicant’s lawyers wrote to the body corporate notifying them of the safety risk regarding the high winds being expected and the ductwork not being secure. It was requested that the body corporate address this matter urgently.

On 25 August 2010, the applicants received an email from the ‘Building Sub Committee’ stating:

“The Air Conditioning ducting is not about to blow off the roof! This was inspected by our engineer several weeks ago and the Committee have received verbal advice (written report to follow) that there is no chance that the ducting will blow away. The struts were originally only held in place only by Ramset nails to stop them from moving laterally so Mr Woodward can again rest easy and concentrate on his own affairs.”

On or about 1 September 2010, Paul Collins (Engineer) sent an email to Mick Cooper of MC Industries (providing air conditioning, refrigeration and mechanical services) stating:

“If the ductwork is left as is, in my opinion, it poses a danger to life and limb. If, for example, during a storm, or other natural phenomena, high speed winds occur at roof level, and a section or sections of the unsupported ductwork break free and are blown over the side of the building, and a person or person at ground level are seriously injured or killed, then this could become a legal issue...”

On 3 September 2010, the applicant’s lawyers wrote to the body corporate expressing concerns regarding the removal of the tie downs points on the ducting of the applicants’ air conditioning plant and equipment.

On or about 23 September 2010, Paul Collins (Engineer) of Anthony Langford & Associates produced a report regarding the air-conditioning ducting. The report makes the following comments:

• The ductwork to the air-conditioning systems has been disconnected from the roof structure, and no attempt has been made to provide any duct support that would maintain the integrity of the waterproof membrane.
• If the ductwork is left unsupported it poses a danger to life and limb.
  

Body Corporate Submissions

In response to the application, the body corporate makes the following comments:

• The interim order sought is not in any way interim in nature. If an interim order is in fact made, as sought, it will in fact constitute a final determination of the issue.
• The body corporate does not admit the allegations contained in the application regarding any alleged danger posed by the original air-conditioning plant, equipment and ductwork not being secured to the roof of the building. The body corporate considers that these matters are opinion only.
• On 22 September 2010, the body corporate commissioned a report from Jeffrey Hills and Associates regarding the securing of the air-conditioning ducting. This report stated as follows:

“The metal apparatus appears well supported and braced and is in a reasonable service condition. The weight of the motor fans and ducting equipment is such that there is little chance of its dislodgement in strong weather conditions.”

• In a subsequent report by Mr MacGregor of Jeffrey Hills and Associates dated 28 September 2010, Mr MacGregor stated:

“The air conditioning ductwork and fan motor assemblies were also inspected and discussed, and the recommendations contained in our previous inspection report remain unchanged...”

• Notwithstanding its expert advice, the body corporate has, out of an abundance of caution, determined to install tie downs on the original air conditioning equipment/ductwork, and is currently arranging for this to be done. The committee expects this to be completed within the next few weeks.
  

Further information from applicant

On 6 October 2010, the applicants provided a further report from Paul Collins dated 5 October 2010 in response to the Jeffrey Hills & Associates Report obtained by the Body Corporate. This report makes the following comments:

• The ductwork to the air-conditioning system is not stable without supports.
• “Concrete plinths should be provided to support the ductwork, and the concrete plinths should then be provided with a waterproof membrane to prevent water entering the unit below."
• The duct supports should be reduced in length, modified and bolted to the concrete plinths with nuts and lock nuts.
• The bolts, nuts and lock nuts should be coated with at least two coats of silastic or equal.
  

Further body corporate submissions

On 11 October 2010, the body corporate made the following comments in relation to the applicants’ further information:

• The body corporate will be arranging for the work necessary to anchor down the original air conditioning ducting based on advice received from, and subject to the approval of, the body corporate’s engineering expert.
• The application is not interim in nature.
• There is no evidence provided to substantial the applicant’s allegations.
• The body corporate has undertaken appropriate investigation of this matter, including the obtaining of expert reports. These expert reports do not support the making of the interim order as sought.
• Out of an abundance of caution, the body corporate is preparing to install tie downs or anchors to the original air conditioning equipment/ductwork in accordance with advice received from its own engineer.
  

JURISDICTION

I am satisfied that this is a matter which falls within the legislative dispute resolution provisions.[2] Section 276(1) of the Act provides that an adjudicator may make an order that is just and equitable in the circumstances (including a declaratory order) to resolve a dispute, in the context of a community titles scheme, about:

(a) a claimed or anticipated contravention of the Act or the CMS; or

(b) the exercise of rights or powers, or the performance of duties, under the Act or the CMS; or

(c) a claimed or anticipated contractual matter about -

(i) the engagement of a person as a body corporate manager or service contractor; or

(ii) the authorisation of a person as a letting agent.

An order may require a person to act, or prohibit a person from acting, in a way stated in the order.[3] An adjudicator's order may contain ancillary and consequential provisions the adjudicator considers necessary or appropriate.[4]

Section 279(1) of the Act allows an adjudicator to make an interim order if satisfied, on reasonable grounds, that an interim order is necessary because of the nature or urgency of the circumstances of the application.

DETERMINATION

‘Interim’ relief

At this time, I am concerned with the application for an interim order and the threshold issue of whether interim orders are warranted. Section 279(1) of the Act says that an adjudicator may make an interim order if satisfied, on reasonable grounds, that an interim order is necessary because of the nature of urgency of the circumstances to which the application relates.

It is not possible to define the range of matters that might be the subject of an interim order. However, as an interim order is designed to precede a final order, I am of the opinion that a matter is not suitable for an interim order if the orders sought are final in nature and would, if granted, finally determine a substantive issue in the final application. In this instance, the interim outcome sought is identical to the second final outcome sought. Further, the supporting material provided in the application makes no differentiation between the interim and final outcomes sought, or in any way indicates that the interim outcome would only have effect ‘pending a final order’. Accordingly, I am not satisfied that the interim outcome sought (namely, that the Body Corporate take steps to immediately secure the air-conditioning plant, equipment and ductwork) is ‘interim’ in nature.

Rather, it seems that the interim outcome sought is merely a duplication of the second final order sought and consequently, if granted, would finally determine a substantive issue in the final application. On this basis, I am not satisfied that the circumstances of the dispute enable the interim order to be made. Interim orders are not a measure by which parties can expedite final order applications. Should the applicants wish to expedite a final order application they are able to submit such a request to the Commissioner for consideration.

Interim outcome sought and supporting information

However, even if I am incorrect in my finding that the application does not seek an ‘interim order’, I am of the opinion that the outcome sought, (namely that the body corporate take steps to immediately secure the air-conditioning plant, equipment and ductwork) is not specific enough to enable the making of the said order.

For example, although the applicants have stated that they would like the body corporate to take ‘steps’ to have the ducting secure, the applicants have not specified which ‘steps’ they would like the body corporate to take. Nor have the applicants provided any quotations setting out who they would like to do the work and/or the scope and costs of any such work. Accordingly, even if I were to order that “the Body Corporate take steps to immediately secure the air-conditioning plant, equipment and ductwork”, the body corporate would not be in a position to immediately undertake the work. Rather, the body corporate would have to obtain at least one quotation (depending on the spending involved), hold an appropriate meeting (i.e. either a committee meeting or a general meeting) to consider the quotation/s and then engage a suitably qualified person to perform the work. Further, prior to even obtaining a quotation/s, the body corporate would have to determine what ‘steps’ they were actually required to perform to secure the plant and equipment.

Given the serious nature of the issues, I consider it inappropriate to order that a party undertake work without specifying exactly what work they are required to perform and at what cost. Accordingly, I am not satisfied that the applicants have sufficiently defined their outcome sought and/or provided adequate material to enable the making of the order sought.

Next steps

I note that the body corporate has agreed, in principle, to perform the requested tasks (namely, to install tie downs or anchors to the original air-conditioning equipment/ductwork). Accordingly, I would recommend as a next step that the parties obtain at least one quotation for the desired works as soon as possible.

I would encourage the parties to work together so that the applicants can obtain access to the common property roof (Level 0) should they wish to obtain any reports or quotations regarding the issues at hand.

Further, it should be noted that nothing in this “Reasons for Decision” prevents the parties from negotiating and reaching their own agreement in relation to these air-conditioning plant and equipment issues.

CONCLUSION

On balance, I am not satisfied that the outcome sought in the interim application is ‘interim’ in nature. Nor am I satisfied that the applicants have sufficiently defined their outcome sought and/or provided adequate material to enable the making of the order sought. Accordingly, I am dismissing the application.

However, given the purported urgency of the circumstances, I am prepared to recommend to the Commissioner that this application be expedited for a final order. Alternatively, the applicants are able to request that the Commissioner schedule the matter for an expedited conciliation session.

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[1] Section 247(3) of the Act.
[2] See sections 227, 228, 276 and Schedule 5 of the Act.
[3] Section 276(2) of the Act.
[4] Section 284(1) of the Act.